Ford and Repatriation Commission [2002] AATA 579 (12 July 2002)

Last Updated: 1 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/190

VETERANS' APPEALS DIVISION )

Re KEITHA MARY FORD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 12 July 2002

Place Hobart

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for determination in accordance with this decision.

..............................................

Part-Time Member

CATCHWORDS

Veteran's Appeals - application lodged by widow of veteran - operational service - standard of proof - Statement of Principles - ischaemic heart disease - cause of death - whether ischaemic heart disease a contributing factor in the veteran's death.

Holthouse and Repatriation Commission (1982) 1 RPD 187

Repatriation Commission v Law (1981) 36 ALR 420

Doolette v Repatriation Commission (1980) 21 ALD 489

REASONS FOR DECISION

12 July 2002 Ms A F Cunningham (Part-time Member)

1. The applicant sought the review of a decision made by the Veterans' Review Board on 5 November 2001 which affirmed a decision of the Repatriation Commission dated 4 July 2000 determining that the death of Mr Collings Ford was not related to his war service.

2. The applicant is the widow of the late veteran, Collins Edward Ford.

3. At the hearing the applicant was represented by Mr R Webster and the respondent by Mr M Castle.

4. The only witness called was Dr Carolyn Ruth Stewart who had been the late veteran's general practitioner since late 1999. The T documents were tendered pursuant to the provisions of s37 of the Administrative Appeals Tribunal Act 1975.

5. The statement of facts and contentions lodged on behalf of the respondent stated that it agreed with the following paragraphs that appeared in the applicant's statement of facts and contentions:

(a) The applicant is the widow of Collings Edward Ford (the late vetran) who died on 24 May 2000.

(b) The late veteran served in the Royal Australian Air Force from 6 October 1943 to 28 March 1946 including service in New Guinea. His service therefore was operational service within the meaning of s6(1) of the Veterans' Entitlements Act 1986 ("the Act').

(c) On 13 June 2000 the applicant lodged a claim for pension under the Act on the ground that the operational service of the late veteran caused or contributed to this death.

(d) Because the late veteran had operational service the application is to be determined pursuant to s120(1) and (3) of the Act which provide that a claim will be upheld if there is a reasonable hypothesis connecting the death with service.

(e) By virtue of s120A of the Act because the claim by the applicant was lodged after 1 June 1994 the hypothesis can only be reasonable if it is upheld by a Statement of Principles determined under s196B(2) of the Act.

6. Mr Castle informed the Tribunal that the respondent also accepted that the late veteran's smoking habit was attributable to this service, and that the veteran's ischaemic heart disease was a consequence of his smoking habit. Mr Castle stated that what is in issue, is whether the veteran's ischaemic heart disease was a contributing factor to the veteran's death. It was Mr Castle's contention that the Tribunal could not be satisfied that the necessary casual link was established between the veteran's death and his eligible service in that when the Tribunal looked at the totality of the evidence of Dr Stewart, it could not be satisfied that the veteran's condition of ischaemic heart disease contributed to his death.

7. The relevant legislation is the Veterans' Entitlements Act 1986 ("the Act"). As the veteran had operational service, the provisions of ss120(1) and (3) apply. In accordance with these sub-sections, the Tribunal must find that the veteran's death was war-caused unless it is satisfied beyond reasonable doubt that it was not. It was accepted by the parties and the Tribunal agrees that in accordance with Statement of Principles, Instrument No. 39 of 1999, concerning ischaemic heart disease and in particular the factor contained in sub-paragraph 5(e) relating to the veteran's smoking habit, the necessary hypothesis is raised connecting the veteran's service with his condition of ischaemic heart disease.

8. In order for the applicant's claim to succeed, the Tribunal must also determine whether the death of the veteran was war-caused in that pursuant to the provisions of s8(1)(b) of the Act, "it arose out of, or was attributable to any eligible service". In other words there must be a causal link between the applicant's death and his period of service. Whilst it was agreed that the applicant's ischaemic heart disease was related to his service, it was contended by Mr Castle that the applicant's death was not caused by his ischaemic heart disease, but was due to cord compression arising from metastatic carcinoma of his prostate.

9. The medical certificate of the cause of death of the veteran appeared in T10, page 35. The certificate stated that the veteran died on 24 May 2000, aged 74 years. The certificate was signed by Dr Carolyn Stewart on 24 May 2000. Dr Stewart stated that the Direct Cause of death was (a) cardiac arrest, due to (b) cord compression, due to (c) metastatic CA prostate. Ischaemic heart disease was stated as being "Other significant conditions contributing to death, but not related to the disease or condition causing".

10. In her evidence before the Tribunal, Dr Stewart stated that whilst it could not be proven that the veteran in fact had ischaemic heart, it was her opinion that he did and he was treated accordingly with appropriate medication. She said that the veteran's ischaemic heart disease was first diagnosed some time during 1999 when he was being treated by Dr Alan Lester. The veteran had been prescribed the medication, Imdur on 2 November 1999 for claudication of his leg which she said, was presumed to include some ischaemia of the heart.

11. Dr Stewart was referred to the death certificate at T10 and confirmed that in her opinion, ischaemic heart disease was a contributing factor to the veteran's death. Dr Stewart went on to say that the veteran also suffered from septicemia, which in her opinion, was "probably more of a contributor" to his death than ischaemic heart disease. Dr Stewart confirmed that she was not present at the veteran's death and that without a post-mortem, it was impossible to determine whether ischaemic heart disease did or did not contribute to his death. As Dr Stewart stated in evidence:

"Yes. As I said, I think that yes, in my opinion Col's primary cause of death was metastatic carcinoma of the prostate as stated on the death certificate. However, I believe he did have ischaemic heart disease, he did have vascular compromise and that would have contributed but - contributed to his death but how much is impossible to say. ... If anything his septicemia or blood poisoning or whatever you'd like to call it, was probably the major contributor."

12. Dr Stewart went on to say that whilst she had not included the condition of septicemia in the death certificate as being a contributing factor, she had recorded it in her medical notes.

13. Dr Stewart conceded in her evidence that the possibility of ischaemic heart disease being a contributor to the veteran's death "could be regarded as a small possibility, it could be regarded as a remote possibility that that did contribute to his death."

14. In Mr Webster's written submissions he urged the Tribunal to conclude that the necessary causal connection between the veteran's death and his war service is established. He based his submission on the interpretation adopted by various authorities of the phrase appearing in s8(1)(b) of the Act which states that the death of a veteran may be determined to be war-caused if it "arose out of, or was attributable to, any eligible service."

15. The authorities referred to by Mr Webster were largely concerned with finding a causal connection between the veteran's service and death or injury. In the cases cited by Mr Webster there did not appear to be much doubt as to cause of death and the question for the decision-maker was whether the veteran's condition that gave rise to the cause of death arose out of, or was attributable to his service. In the present case however, there is doubt as to the actual cause of the veteran's death. The death certificate states that the direct cause of death was cardiac arrest which was due to cord compression due to metastatic carcinoma of the prostate. The question remains as to whether the veteran's ischaemic heart disease which the parties accept as being war-caused, and in accordance with the relevant Statement of Principles raises a reasonable hypothesis, was also a contributing factor in the veteran's death. The death certificate states that the veteran's ischaemic heart disease was a significant condition contributing to death, but not related to the disease or condition causing it.

16. The Tribunal must find that the requisite causal connection is established, unless it is satisfied beyond reasonable doubt on the evidence before it that there is no sufficient material giving rise to such a finding. The Tribunal does not accept Mr Castle's submission that the conclusion of Dr Stewart that ischaemic heart disease was a possible cause in the veteran's death was "mere speculation".

17. The requirement that the death "arose out of, or was attributable to any eligible war service" (s8(1)(b)) is not the same as being "caused by" any eligible service. In other words, the veteran's eligible service must be a contributing factor. As Davies J remarked in the decision Holthouse and Repatriation Commission (1982) 1 RPD 187, "the connection need not be the sole, dominant, direct or approximate cause and affect, it is sufficient if there be a contributing cause or connection." Further as the Tribunal stated in Repatriation Commission and McKenzie (1988) "the term attributable to involves some element of causation but it is sufficient if the cause was a number of causes as long as it did contribute to the death... ."

18. The High Court in the appealed decision Repatriation Commission v Law (1981) 36 ALR 420 agreed with the reasoning of the Full Court which had concluded that "Where the death of an erstwhile Member of the forces might have arisen out of war service or might be attributable to it, a pension cannot be refused unless it is proved beyond reasonable doubt that the death was not so related to his war service." The Federal Court noted in Doolette v Repatriation Commission (1990) 21 ALD 489 that whilst the above conclusion of the High Court was referrable to expressions made in relation to the Repatriation Act 1920, stated that there was "no reason to consider that (the) expression ´attributable to' appearing in the present legislation should be interpreted differently."

19. On the basis of the evidence before it and in particular the evidence of Dr Stewart and the contents of the death certificate, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient evidence connecting the veteran's condition of ischaemic heart disease with his death. Although Dr Stewart said that the connection between the veteran's ischaemic heart disease may only be a small or even a remote possibility, she nevertheless concluded that there was a connection and so stated on the veteran's death certificate. Dr Stewart further stated that in her opinion, in the absence of the veteran's carcinoma of the prostate, his ischaemic heart disease would have probably caused his death eventually. The Tribunal accepts that where there is any doubt on the factual material before it, the Act being beneficial legislation, the Tribunal should resolve the doubts in favour of the applicant. (Re Forbutt and Repatriation Commission (1991) 23 ALD 121; Connolly and Repatriation Commission (1988) 50 ALD 531.

20. The Tribunal finds on the evidence before it that there is the required connection between the veteran's death and his service. The Tribunal accordingly sets aside the decision under review and remits the matter to the respondent for determination in accordance with this decision.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: .....................................................................................

Administrative Assistant

Date/s of Hearing 6 June 2002

Date of Decision 12 July 2002

Counsel for the Applicant Mr R M Webster

Counsel for the Respondent Mr M Castle

Solicitor for the Respondent Department of Veterans' Affairs